TC Palm Q&A Column, October 8, 2017

By October 8, 2017News, Questions & Answers

Editor’s noteAttorneys at Goede, Adamczyk, DeBoest & Cross, PLLC, respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.

Q: I enclosed my condominium lanai five years ago.  The enclosure was damaged by hurricane Irma and my neighbors are telling me that the condominium association is responsible to repair/replace the enclosure.  Who is responsible?

D., Treasure Coast

A: This is a very good question and requires some analysis.  First, it is critical to note that there is a difference between damage caused by normal wear and tear, and damaged caused by an insurable event.  The answer below focuses solely on the analysis where the damage was caused by an insurable casualty event.  The Florida Condominium Act today provides that the condominium association is required to repair and replace portions of the condominium property that are insured by the condominium association.  So, the next question is therefore whether your lanai enclosure is required to be insured by the condominium association.

Florida Statutes section 718.111(11) requires the condominium association to insure all portions of the condominium property as originally installed or replacement of like kind and quality.  The statute also requires the association to insure any material alterations approved in accordance with Section 718.113(2).  

Thus, because your question indicates that you installed the lanai enclosure, I assume that it was not originally installed by the developer and is not a like kind replacement.  That being said, it is possible that the enclosure constitutes a material alteration which therefore requires the condominium association to insure the structure.  I would need to know more to answer the question, and specifically whether the enclosure is authorized as an alteration in the governing documents and whether the enclosure was approved by the membership as a material alteration to the condominium property.

I would recommend you bring this matter to the association’s attention and confirm whether your lanai enclosure is included within the association’s insurance coverage.  There is a chance you will be responsible for repair and replacement due to the hurricane damage, but as you can see above there is more analysis to be done and therefore I would recommend you bring any dispute to a licensed Florida attorney for further review.

Q: Our homeowners association recently discovered that there are no reserve funds to replace the perimeter wall.  As a result, the Board is increasing the annual assessment significantly to make up for the short fall.  Doesn’t the membership need to approve large increases in assessments?

T.R., Stuart

A: First, note that are significant differences between reserve obligations in a condominium association versus a homeowners association.  Chapter 720 governing homeowners associations does not require the Board to obtain approval for budgetary increases.  It is very possible your governing documents have self-imposed a restriction on the Board’s ability to increase the budget, but this would depend on your specific governing documents.  If the documents are silent on this issue, then the general rule is that the Board has control over the budget and therefore the assessments levels.

With specific reference to reserve increases, I will assume that the homeowners association has never reserved for the perimeter wall and the members have never specifically approved a reserve for the perimeter wall.  If this is the case, Florida law confers significant discretion over the Board’s reserve capabilities and would generally support the Board’s figures with respect to reserve levels for the wall.

Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, Adamczyk, DeBoest & Cross, PLLC.  Ask questions about your issues for future columns, send your inquiry to: question@gadclaw.com.  The information provided herein is for informational purposes only and should not be construed as legal advice.  The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys.  Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein.  The hiring of an attorney is a decision that should not be based solely on advertisements or this column.